Congressional Record, Volume 152 Issue 25 (Thursday, March 2, 2006)

[Congressional Record Volume 152, Number 25 (Thursday, March 2, 2006)]
[House]
[Pages H530-H539]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NATIONAL UNIFORMITY FOR FOOD ACT OF 2005

The SPEAKER pro tempore. Pursuant to House Resolution 702 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the State of the Union for the consideration of the bill, H.R. 4167.

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In the Committee of the Whole

Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the consideration of the bill
(H.R. 4167) to amend the Federal Food, Drug, and Cosmetic Act to
provide for uniform food safety warning notification requirements, and
for other purposes, with Mr. Boozman in the chair.
The Clerk read the title of the bill.
The CHAIRMAN. Pursuant to the rule, the bill is considered read the
first time.
The gentleman from Georgia (Mr. Deal) and the gentleman from
California (Mr. Waxman) each will control 30 minutes.
The Chair recognizes the gentleman from Georgia.
Mr. DEAL of Georgia. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I rise today in support of H.R. 4167, the National
Uniformity for Food Act. The manufacturing and distribution of the
things we eat and drink is now a national industry. Coca-Cola, which is
based in my home State in Atlanta, Georgia, for instance, is shipped to
every corner of the country and throughout the world. Many believe that
it is just common sense for these types of food manufacturers and
distributors to have one labeling standard for the country, not 50
standards for 50 States.
More importantly, in order to make informed choices, consumers need
consistent information. When a food warning is supported by science and
consumers need to know it, the same warning should be applied to food
everywhere. H.R. 4167 achieves that result.
With a mobile society, inconsistent warning requirements are
guaranteed to confuse. When it is a matter of health and safety, a
little confusion can have catastrophic effects.
A person in North Augusta, South Carolina, for example, can walk into
a store and buy a product with no warning label. The same person could
walk across the street to a store in Augusta, Georgia, and buy the same
product but have a warning label attached. Does this make any sense? Of
course not. It does not make any more sense to the shopper than it
makes here in the House today.
When people need to be warned that a food product may hurt them,
everyone needs to be warned. Uniformity in food regulation and labeling
is not without precedent. Meat and poultry are regulated under uniform
standards. The Nutrition Labeling and Education Act of 1990 requires
uniform nutrition labeling. If consistency in nutrition labeling is
warranted, consumers should certainly have the benefit of consistency
in warning labels of the food they eat.
Some have rightfully argued that State-specific circumstances might
necessitate a warning unique only to their State. This bill
acknowledges that fact by inviting States to assert their unique
problems and ensure that they will get a fair and fast response from
the Food and Drug Administration.
I would also like to dispel some of the misinformation that opponents
of the bill have been perpetuating. In no way will this bill hinder the
ability of States to respond to public emergencies. If a State feels
there is an imminent public health threat that must be protected by
requiring manufacturers and distributors to put a warning label on
their product, they can do it immediately. All this bill requires is
they tell the FDA of the threat. That is something they should be doing
anyway and in most cases are already doing.
Additionally, this bill does not affect a State's ability to issue
its own notification to the public, to embargo a product, or to issue
recalls when they deem that necessary.
Finally, this is mostly a question about food safety, but there is a
broad economic aspect to it too. Making consumers deal with 50
different labeling requirements is not without cost. In effect, it
divides America into 50 different markets where each of the products
cost the consumer just a little more to buy.
The men who wrote our Constitution decided that letting each State
wage trade wars with its neighbors was a terrible idea, so they
outlawed it by putting the Federal Government in charge of interstate
commerce. It is hard to see the Framers changing their minds today so
that one big market for American food can revert to 50 little markets
where consumers pay more and get less.
Consistent requirements will lead to consistent results for those who
make our food, and consistent information will lead to consistently
better and safer choice for our consumers.

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I urge my colleagues to support H.R. 4167.
Mr. Chairman, I reserve the balance of my time.
Mr. WAXMAN. Mr. Chairman, I yield for the purpose of making a
unanimous consent request to the gentleman from Texas (Mr. Gene Green).
(Mr. GENE GREEN of Texas asked and was given permission to revise and
extend his remarks.)
Mr. GENE GREEN of Texas. Mr. Chairman, I rise in opposition to this
legislation.
This is the second Congress in which this bill has been approved by
the House Energy and Commerce Committee without the benefit of a
hearing.
Committee approval of a bill with universal support is one thing. But
this bill does not enjoy universal support and raises serious questions
about States' rights and national security. Had we been given the
benefit of a hearing, we could have learned more about the National
Association of Attorneys General's opposition. We could have learned
about the elements of the bill that led the Association of Food and
Drug officials to conclude that this bill would ``handcuff the first
responders who deal with food safety issues every day.''
Legislation that causes this degree of concern should not be pushed
through committee and brought to the floor without the benefit of a
hearing.
Mr. Chairman, this bill is an affront to States' rights. In each of
the 50 States, State legislatures have passed food safety laws that
offer residents additional food safety protections than federal law
provides.
This sweeping legislation would eliminate those State laws. It does
so in two ways.
First, the bill preempts all existing State-mandated food safety
warnings.
Second, it eliminates all State food safety laws that are not
identical to federal law.
In the name of food uniformity, this bill will actually disrupt State
food safety enforcement activities and hinder States' ability to
protect residents from unsafe foods.
The bill also would prevent State and local governments from warning
residents about the presence of contaminants in local food.
In my State of Texas, this bill would nullify laws protecting Texans
from unsafe food and color additives. It would have the same effect on
nearly 200 laws in each of the 50 States. Jurisdiction for food safety
activities has long resided with the States, which conduct 80 percent
of all food safety inspections.
This bill also has serious implications to national security.
The National Association of State Departments of Agriculture--which
opposes this bill--has highlighted the role that the current food
safety system plays in national security, saying that it ``forms the
first line of defense against the growing threat of a terrorist attack
against our nation's food supply.''
According to the State Agriculture Departments, the preemption
provisions of this bill ``would leave a critical gap in the safety net
that protects consumers.''
I encourage my colleagues to protect consumers, stand up for States'
rights, and ensure the security of our Nation.
Oppose this misguided bill.
Mr. WAXMAN. Mr. Chairman, I yield myself 4 minutes.
Mr. Chairman, today the House takes up legislation that would
overturn 200 State laws that protect our food supply. Some of them are
in labeling and some actually deal with the substance of what can be in
food in the State.
A year ago, the House passed legislation to try to dictate private
end-of-life decisions of Terry Schiavo and her family. This intrusion
of the Federal Government into personal decisions was, I think,
universally condemned, and yet today the House is once again trying to
usurp powers that do not belong in Washington.
Why are they doing it? Because some special interests want to
overturn State laws that they never liked. The only difference is that
it is the authority of State and local governments to protect against
food-borne hazards that is now under assault.
In California, for example, we have candies that come in from Mexico
that have lead in them. So our legislature passed a law regulating lead
in candy. It is a sensible idea. Lead can cause brain damage to
children. Yet the authors of this bill that is before us today, without
holding any hearings, want to preempt that law.
Now, their argument is, well, we ought to have a Federal law that
does the same thing. If we ought to have a Federal law to do the same
thing, why has the Federal Government not done that? The Federal
Government has not been involved in these areas. They have been in the
area of State control.
In Maine there is a law that requires consumers to be warned about
the dangers of eating smoked alewives. This is not a problem in
California, but apparently it is one in Maine. Yet again it would be
preempted.
I could go on and on. Wisconsin knows a lot about cheese. It has
special labeling requirements for cheese. Florida has special labeling
requirements for citrus. Mississippi and Louisiana have special rules
for differentiating farm-bred from wild catfish, and Alaska has similar
rules for salmon. Ten coastal States have special laws protecting their
residents from contaminated shell fish, and all 50 States have laws
ensuring the safety of milk. And all of them would be preempted.
The arrogance of the House of Representatives appears to know no
bounds. The attitude seems to be that all knowledge resides in
Washington and all power should as well.
This is dangerous legislation. I know the proponents are going to say
to you, well, they can appeal to the Food and Drug Administration to
allow them at the State level to continue with their laws. Can you
imagine that? The States, the sovereign States of this country, have to
go hat in hand to a Federal bureaucracy to allow them to continue laws
that their people accepted, passed under their rules, the State
legislature and the Governors, to protect their population?
The FDA cannot protect the food supply all by itself. The agency is
underfunded and overworked, and it is failing even at the core mission
of protecting consumers from dangerous drugs.
You do not have to take my word for it. Just yesterday, 37 State
Attorneys General, Republicans and Democrats, sent a letter to Congress
opposing this radical legislation. They stated: ``We write to urge you
to oppose the National Uniformity For Food Act which undercuts States'
rights and consumer protection.'' And they go on to say: ``State and
local governments are often the first line of defense when problems
emerge. Prohibiting State and local leadership and action in this area
is a serious mistake.''

{time} 1300

We have also had opposition from the National Association of the
State Departments of Agriculture and the Association of the Food and
Drug Officials. These food safety experts know that passage of this
legislation would create havoc and endanger families.
For years, I have heard my Republicans say, let us allow the States
to do what they need to do to protect their people. I agree with them.
Do not bring everything to Washington.
Madam Chairman, I reserve the balance of my time.
Mr. DEAL of Georgia. Madam Chairman, I yield 3 minutes to the
gentleman from Michigan (Mr. Rogers) who is the sponsor of this
legislation.
Mr. ROGERS of Michigan. Madam Chairman, I thank the chairman and I
want to thank our 59 Democrat cosponsors. I want to thank the gentleman
from New York (Mr. Towns) and the chairmen, Chairman Barton and
Chairman Deal, for the work that they have done on this very important
piece of legislation.
I will say today that you will see great political theater, and I
have the greatest respect for the gentleman from California (Mr.
Waxman) and normally the great substantive debate that is put forth,
but what we are going to see today are a lot of half-truths, or no
truths at all or not even getting close to what this bill really does.
If you truly care about the health of the pregnant woman who is
driving from Michigan to Florida to Illinois to meet family members all
through that journey, then when she goes to that store to pick out some
food, the label for her safety and the safety of her child ought to be
the same. It should not be any different, the science that says that
Illinois ought to label a safety provision in food; I cannot think of
anything more important than the safety of our food ought to be the
same.
Because you know what? Science in California or science in Alaska or
science in Florida is no different. The periodic tables are the same in
Michigan as they are in Florida, as they are in Maine, as they are in
New York. If it rises to that level where somebody with good science
and scientists who

[[Page H532]]

care passionately about the safety of food and what we put in our
bodies, to say we better tell people about this safety hazard, if it is
good enough for one State's children, it is good enough for 50 States'
children.
Matter of fact, one of the examples that my good friend mentioned
about the Florida citrus example is not preemptive because it has
nothing to do with food safety. You are going to hear this again and
again and again today, that we are somehow doing something awful and
not letting them protect their citizens. That simply is not true.
Matter of fact, if they have a standard based on good science that
says, hey, we think that this food ought to have this warning label,
then come to the FDA, show us the science, so we can share it with the
rest of the country. Is that not the right thing to do? Do you not want
to protect the children of all our 50 States? Absolutely you do.
So I will say to you, let us subside with the political theater, the
half-truths, the scare tactics and say we are going to embrace what we
know is the right thing to do, a single standard. It is very much a
common-sense issue. You are not going to find any family in America who
thinks we ought to have 50 States and 50 different organizations trying
to determine what is safe in our food and what is not.
The same way we do with nutritional labeling, we went through and
said the Federal Government better set some standards if we are going
to have a consistency in all 50 States. It was widely supported, as
this bill is bipartisanly supported.
We said, hey, we better set an organic standard so we can tell all of
America that we have got one standard that rises to the ability to
label it as organic. Today, we are saying food safety rises to that
same level. Every American, every mother, understands it. I am sure my
colleagues on the other side will as well.
Mr. WAXMAN. Madam Chairman, I yield myself such time as I may
consume.
If the Federal Government wanted one uniform standard and wanted to
preempt the States from different standards, they could do it. They
could do it, but what this bill would do is to preempt the States from
even going forward on their own initiative to look at problems and have
a standard or label in their State.
The problem has never been demonstrated that there is an issue where
there are too many State differences. The problem is that the Federal
Government has not been involved in this area. So if we can get the
States out of it and the Federal Government out of it, then processors
can just sell their food and not worry about having to meet any
standard anywhere.
In California, we have a law that says you must designate if some
harmful substance is in food. The consequence of that warning label
means that the food producers make sure they do not have to put a
warning label on because they get rid of any toxic substance that might
be in their product. That is a good result of that requirement. It
would be preempted by this law.
Madam Chairman, I yield 3 minutes to the gentlewoman from California
(Ms. Eshoo), my colleague and a very important member of the Energy and
Commerce Committee.
Ms. ESHOO. Madam Chairman, I thank the gentleman from California (Mr.
Waxman), my distinguished colleague, for not only his eloquence on this
bill but all the work that he has done on public health issues and
health in general for the people of our country.
I rise to oppose this bill, and I do because I believe it is an
assault on public health and consumer protection. It is no wonder there
has never been a hearing on this bill in the last 8 years.
So this is not about theater. This is not, as the gentleman who
introduced the bill said a few moments ago, about theater and
deception. This is a very, very serious debate, and it is a debate that
should have been taking place in a public hearing, in a hearing of our
committee; and it has not. I think that that in and of itself is an
assault on the American people. It is disrespectful.
The bill will preempt any State or local food safety law that is not
identical to a Federal law, and we do not have those Federal laws. So
it will absolutely leave a void. Is the majority saying here that they
are set to put into place, if this bill passes, God forbid, that they
are going to place on the Federal books, 200 Federal laws in a
nanosecond? I do not think so.
Under this bill, the FDA will have to approve any food safety law
that is at variance with Federal policy, and according to the CBO, the
bill will preempt an estimated 200 State and local laws dealing with
food safety. Absolutely, preempt them, right away, 200 State and local
laws.
It is going to cost the FDA $100 million over the next 5 years to
process petitions from States seeking to retain these laws. There is
simply no credible public health justification for the extraordinary
steps that this bill takes.
The attorney general of California has weighed in against the bill. I
insert this memorandum to the California delegation as part of the
Record at this point.

MEMORANDUM

February 10, 2006.
To: Honorable Members of the California Congressional
Delegation
From: California Attorney General, Bill Lockyer
Re Opposition to H.R. 4167, the National Uniformity for Foods
Act of 2005.
H.R. 4167, the National Uniformity for Foods Act of 2005,
endangers important public health protections California law
provides its citizens. As the measure moves toward a possible
vote on the floor of the House of Representatives, I wanted
to make sure members of the California delegation fully
understand this threat, and urge you to oppose the bill.
Perhaps the proponents did not make clear the extent to which
H.R. 4167 would deprive Californians of the particular
benefits of Proposition 65. This landmark law was passed by
63 percent of the voters, and it has reduced Californian's
exposure to toxic chemicals in food.
1. Scope of the Bill
The dramatic sweep of this bill may not have been made
apparent:
It would forbid any state from requiring any form of health
disclosure for a food, even where the FDA has no requirement
in place for a given food, and is not even considering a
requirement. This prohibition would even bar warnings posted
in stores within a single state, and which therefore have no
effect on interstate commerce, other states or a
manufacturer's nationwide product label. (Proposed 2(b)(2).)
It apparently would bar states from limiting toxic
chemicals in a food simply because the FDA has a general rule
barring foods that are ``injurious to health,'' even where
the FDA has not set any exposure standard for specific toxic
chemical states may want to regulate. (Proposed 2(a)(3).)
It would remove the incentive that currently exists for
food companies to reduce toxic chemicals in food products to
below the level that requires a warning under Proposition 65.
2. Examples of Benefits of State Regulation
There are many examples of how Proposition 65 has
benefitted Californians. An excellent case in point is the
recent effort by my office, the Legislature and Governor
Schwarzenegger to address the issue of lead in imported
Mexican candies. These candies are extremely popular with
millions of Californians, especially our large Latino
population. But they have garnered little attention from
federal regulators in Washington, D.C. For years, FDA has set
an allowable lead level in these candies of 0.5 parts per
million. That standard, uniformly recognized by public health
officials as too lax, allows approximately 20 times more lead
in a piece of candy than Proposition 65 permits. Lead damages
the developing fetus, and impairs nervous system development
ill young children. A 2003 article in the New England Journal
of Medicine concluded that levels of lead previously
considered safe, actually caused a significant reduction of
children's IQ. Thus, what may in the past have been
considered a ``trace amount'' posing no real risk now is
known to damage health.
Despite numerous press stories showing these candies'
adverse health effects on children in the local Latino
population, FDA took only limited action to enforce its own
alarmingly lax standard. As a result, in June 2004, my office
filed an action under Proposition 65 which will force Mexican
style candy manufacturers to reduce to safe levels the lead
in their candies. In addition, last year the Legislature
passed and the Governor signed Assembly Bi11 121, which
prohibits the sale of adulterated candy containing lead,
imposes fines for the sale of such candy and directs the
state Office of Environmental Health Hazard Assessment to set
a regulatory level allowing only ``naturally occurring'' lead
to be present in candy.
H.R. 4167 would preempt Assembly Bill 121, simply because
FDA has a more lax, and largely unenforced, lead standard.
Additionally, H.R. 4167 would preempt Proposition 65's
warning requirement because it is a non-uniform disclosure.
The bill would preempt another important use of Proposition
65--my vigorous efforts to assure that parents and women of
childbearing age are aware of the risks to unborn babies and
their small children from consuming too much fish with high
levels of

[[Page H533]]

mercury. This effort is largely consistent with the FDA's own
policies. The FDA website warns that women who are pregnant
or may become pregnant should not consume certain types of
fish (such as swordfish and shark), and should
limit consumption of all types of fish, because of their
mercury content. California has given life to this
requirement by requiring that similar information be
posted in grocery stores that sell fresh fish and
restaurants that serve fish. At least six other states
have instituted similar public disclosure requirements
concerning mercury in fish. We recently completed the
evidence phase of a trial concerning warnings for canned
tuna. We believe such warnings can be provided in a manner
that will not conflict with FDA's advice, but will ensure
the advice is seen by more consumers of fish than FDA's
website. H.R. 4167 would preempt this disclosure
requirement.
In addition, even well established and successful uses of
Proposition 65 could no longer be enforced, unless approved
by the FDA. For example:
Lead in ceramic tableware: Based on a 1991 action by then
Attorney General Dan Lungren, industry agreed to
substantially reduce lead that leaches from ceramic tableware
into food and beverages. Manufacturers took that step because
of the marketplace incentive created by the duty to post
conspicuous point-of-sale warnings. While warnings initially
were common, most companies have reduced lead levels to
substantially below FDA requirements.
Lead in calcium supplements: In June of 1997, California
reached agreement with makers of calcium supplements to
reduce levels of lead contamination in their products below
the level at which a warning would be required under
Proposition 65. Because of the importance of encouraging
women to increase their intake of calcium, this agreement was
negotiated without ever providing a consumer warning.
Meanwhile, FDA issued advisories concerning some sources of
calcium as early as 1982, and requested additional data in
1994. But it never has taken regulatory action.
Arsenic in Bottled Water: Arsenic in bottled water has been
reduced to less than 5 parts per billion under the settlement
of a Proposition 65 action reached in 2000. FDA, in contrast,
still applies a standard of 50 parts per billion.
Leaded crystal: Based on science showing that substantial
quantities of lead leach from fully-leaded crystal (defined
as 24 percent lead) into beverages, California took action to
require visible warnings at the point of sale in California,
as early as September of 1991. Leaded crystal--as
distinguished from other types of glassware--now carries
prominent warnings in California stores. Since 1991, FDA
never has publicized its advisory addressing this hazard in a
manner likely to be seen or read by consumers.
In other instances, quiet compliance with Proposition 65
has produced public health benefits without litigation. Lead
soldered cans leach substantial amounts of lead into foods
stored in the cans. As soon as Proposition 65 took effect in
early 1988, our investigations found that food processors
were switching to cans that do not use lead, before
enforcement action was even necessary. In 1993, years after
Proposition 65 took effect, FDA issued ``emergency'' action
level. Similarly, potassium bromate is a listed carcinogen
under Proposition 65. Informal surveys in 2002 of stores in
Ca1ifornia found no bread containing potassium bromate for
sale. And the 2002 surveys found stores in other states sold
bread containing potassium bromate. Meanwhile, FDA remains
engaged in a multi-year process to encourage bakers to stop
using this additive.
I recognize many have expressed concern about certain
enforcement activities of Proposition 65 by private parties.
That is why my office and the California Legislature have
taken vigorous action to ensure that private lawsuits brought
under Proposition 65 are pursued only in the public interest.
In 1999, the Legislature amended the statute to require that
private plaintiffs report to the Attorney General concerning
their enforcement activities. In 2001, I sponsored additional
legislation that requires all persons who want to bring
private Proposition 65 cases seeking consumer warnings to
first provide my office with appropriate scientific
documentation. That statute also requires that all
settlements of those cases be reviewed by my office and
approved by courts in a public proceeding under specific
legal standards. These actions by the state have curbed
questionable lawsuits filed by private litigants, and reduced
the number of settlements that are not in the public
interest.
I am aware that many in the food industry have expressed
great concern over the chemical acrylamide, its presence in
many foods, and the potential application of Proposition 65
to those foods. The FDA has been considering this issue since
2002, and currently has no schedule for when, or whether, it
will take any action concerning the matter. In the meantime,
a single serving of french fries contains 80 times the amount
of acrylamide EPA allows in drinking water. Accordingly, I
have filed suit under Proposition 65 to require warnings for
acrylamide in french fries and potato chips, so that people
in California can make their own choices about their exposure
to this chemical. This suit would not ban any products or
require that warnings be provided in any other state. It
would, however, provide Californians the health information
they demanded in passing Proposition 65.
3. Petition Process
While H.R. 4167 would allow states to petition FDA for
authority to impose additional requirements, it is
inappropriate to require a state to seek the federal
government's permission to protect the health of its
citizens. Moreover, our past experience suggests the FDA
would deny any such petition.
Further, the specific provisions of the petition process
raise concerns. Initlal1y, states would have six months to
petition FDA for approval of existing requirements applicable
to specific foods, during which time those requirements would
remain in effect until disapproved by the FDA. (Proposed
Sec. 403B(b).) While the bill provides for judicial review of
FDA's decision, it does not establish the standard by which
any denial of a petition would be judged. The lack of a
review standard would leave FDA potentially limited
discretion to arbitrarily strike down state requirements.
(Proposed Sec. 403B(b)(3)(C)(ii)(I).)
Any general requirement such as Proposition 65 itself--and
any new requirement, could be adopted only after approval by
FDA. The FDA could delay that process indefinitely through
extension of the ``public comment period.'' (Proposed New
Sec. 403B(c)(1), (3)(B).) Thus, it appears that any time a
state official sought to apply an existing law to a food
product where no specific requirement for that food had been
set, enforcement of the law would be barred until and unless
the FDA granted its permission.
Indeed, H.R 4167's petitioning scheme brings to mind one of
the grievances against distant British authority recorded in
the Declaration of Independence. ``He has forbidden his
governors to pass laws of immediate and pressing importance,
unless suspended in their operation till his assent should be
obtained; and when so suspended, he has utterly neglected to
attend to them.'' (Declaration of Independence, 4th
paragraph.)
4. Need for National Uniformity
In a few instances, legitimate reasons exist for national
uniformity in food labeling and standards. These
circumstances, however, already are addressed under current
federal law, which. also prohibits states from adopting
requirements that conflict with properly adopted and
necessary federal labeling requirements.
Existing section 403A of the Federal Food, Drug, and
Cosmetic Act expressly precludes state laws mandating label
requirements for a wide variety of matters on which the FDA
has acted and uniformity is necessary. This preemption covers
standards of identity, use of the term ``imitation,''
identification of the weight of the product and its
manufacturer, the presence of food allergens, and whether the
product is pasteurized.
Other federal regulatory statutes that govern nationwide
industries, such as the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), adopt a much more limited approach.
FIFRA, for example, preempts only state warning requirements
that would appear on the nationwide label of the product. It
also allows each state to adopt more restrictive requirements
for use of pesticides within that state.
Even where Congress has not expressly preempted state law,
courts uniformly have held that state law must give way to
federal requirements where the two are in ``actual and
irreconcilable conflict.'' The California Supreme Court
applied that requirement in Dowhall v. SmithKlineBeecham
(2004) 32 Cal.4th 910.) This doctrine sufficiently ensures
state regulations do not interfere with properly adopted
federal requirements.
In fact, FDA officials have demonstrated a disturbing
tendency to manufacture ``conflicts'' in their desire to
preclude states from enforcing their own laws to protect
public health. FDA officials arbitrarily declare
``misbranded'' products for which additional warnings would
be given, without even consulting state authorities. For
example, last August, the FDA, at the behest of a Washington,
D.C. law firm, sent me a letter asserting that state warning
requirements concerning mercury in canned tuna conflicted
with federal law. The FDA sent this letter without any
advance notice to my office. Further, the letter was based on
inaccurate information provided the FDA by the industry law
firm, and was sent without awareness that we proposed only
that California states provide warnings completely consistent
with FDA's own published ``mercury in fish advisory.'' In
light of such incidents, it's arguable that if there is any
need for legislation, it is to amend federal law to protect
the states against arbitrary and informal action by federal
officials who take it upon themselves to declare California
law in ``conflict'' with federal law, without providing state
authorities advance notice or any opportunity to be heard.
H.R. 4167 would greatly impede our ability to protect the
health of Californians, both under Proposition 65 and under
other laws that could be adopted by the voters or our
Legislature. I thank those of you who are opposing this
measure. For those of you still considering the bill, I
strongly urge you to oppose it and for those of you who have
agreed to co-sponsor the measure, I hope you will reconsider
your position in light of the important consumer protections
H.R. 4167 will impede.

Madam Chairman, the State Departments of Agriculture, as well as
State and food safety officials from all 50 States oppose the bill
because they believe it hampers their ability to protect the public
from hazards in the food supply, even potential bioterrorist attacks,
an issue that really should be

[[Page H534]]

debated and discussed and would have been if we had ever had a hearing.
These State and local officials are responsible for conducting 80
percent of the food safety inspections in the country, and yet today we
are diminishing their ability to carry out their important role.
The National Association of State Departments of Agriculture
representing every State in the Union has come out against the bill.
The Association of Food and Drug Officials wrote that ``The bill will
preempt States and local food safety and defense programs from
performing their functions to protect citizens.''
Equally disturbing, the bill will scale back State laws designed to
protect pregnant women and children from potential hazards in foods.
Why would we ever take such a step?
For all of these reasons and many more, I rise in opposition to the
bill. It is bad public policy and it should be rejected by the House.
Mr. DEAL of Georgia. Madam Chairman, I yield 3\1/2\ minutes to the
gentleman from Florida (Mr. Boyd) for purposes of a colloquy.
Mr. BOYD. Madam Chairman, I want to thank the gentleman from Georgia
for yielding time to me to enter in a colloquy so that we may clarify
certain parts of this.
I, and other Members, would like to be certain that we understand how
this bill affects State food safety laws. It is my understanding that
the bill contains a list of 10 provisions of Federal food safety laws
and that State law dealing with the same subject as the Federal law is
required to be identical to the Federal law. Is my understanding
correct?
Mr. DEAL of Georgia. Madam Chairman, will the gentleman yield?
Mr. BOYD. I yield to the gentleman from Georgia.
Mr. DEAL of Georgia. Madam Chairman, yes, it is.
I would add that, under the bill, ``identical'' means that the
language in the State law is substantially the same as that in the
listed sections of Federal law and that any differences in language are
not material. This is important to understand.
Mr. BOYD. Madam Chairman, I thank the gentleman for his
clarification.
Am I correct in also understanding that virtually all of the State
laws that relate to the sections of Federal law listed in the bill are
identical to Federal law already?
Mr. DEAL of Georgia. If the gentleman would further yield, yes.
For example, Federal law contains what is referred to as the ``basic
adulteration standard,'' which provides that a food is adulterated if
it bears any added poisonous or deleterious substance which may render
the food injurious to health. All States have a provision that is
identical to this provision of Federal law.
Mr. BOYD. Madam Chairman, I thank the gentleman.
Is the basic adulteration standard to which the gentleman has
referred the standard that the Federal Government or States would rely
on to deal with the presence of unsafe levels of contaminants in food?
Would that provision permit a State to take action against a terrorist
threat to food supply?
Mr. DEAL of Georgia. The gentleman is correct on both of those
points.
Mr. BOYD. Madam Chairman, a lot of us are confused. There have been a
lot of allegations coming from all directions. There are folks who
oppose the bill, that have produced a list of 77 State laws that would
purportedly be nullified under this bill.
If the gentleman would, is that an accurate portrayal of the effects
of this bill?
Mr. DEAL of Georgia. Madam Chairman, if the gentleman would continue
to yield, no, it is not.
Careful analysis of that list shows that of the 77 State laws listed,
55 would not be preempted. Let me give you two examples. First,
included on the list is an Alabama law that sets nutritional standards
for grits. This uniformity bill does not deal with nutritional
standards or with grits, so the Alabama law is unaffected by the bill.
Secondly, the list includes several State laws that require that fish
be labeled as previously frozen, if that is the case. These laws are
not affected by the uniformity provision because those State fish
labeling requirements are not warnings.
Of the 22 State laws that would be affected by the bill, 14 authorize
States to adopt requirements for food and color additives that are
different from Federal requirements. Although these laws would be
preempted under the bill, the fact is that none of the 14 States that
have these laws have any current requirement for food or color
additives that are different from Federal requirements.
So, in spite of all the wild assertions that the uniformity bill
would nullify ``the bulk of the State food safety laws,'' as one
opponent has put it, the fact is it would do nothing of the sort.
Mr. BOYD. Madam Chairman, I thank the gentleman for that
comprehensive and reassuring response. I agree there is a lot of
confusion about the bill, and we do not clearly understand the effects
on State law and authority. I am satisfied, however, that the bill
properly preserves the ability of States to take action to protect
consumers, while ensuring that food safety policies will be uniform and
scientifically based, and I thank the gentleman for his time.
Mr. DEAL of Georgia. Madam Chairman, I reserve the balance of my
time.
Mr. WAXMAN. Madam Chairman, I yield 6 minutes to the gentleman from
Michigan (Mr. Stupak), an important Member of the Energy and Commerce
Committee, who has been very active on FDA issues for a number of
years.
Mr. STUPAK. Madam Chairman, I thank the gentleman for yielding me the
time.
Madam Chairman, I rise today in strong opposition to H.R. 4167.
I find it interesting that the majority party, which calls itself an
advocate for States' rights, would actually put forth a bill that
eviscerates State food safety laws. If passed, this bill would be a
huge setback for consumer safety, public health and America's war on
terror.
Yesterday, I urged the Rules Committee to accept the Capps-Eshoo-
Waxman-Stupak consumer protection amendment which would permit States
to maintain or enact food safety and food warning laws that require
notifications regarding the risks of cancer, birth defects,
reproductive health issues, and allergic reactions associated with
sulfiting agents in bulk foods.

{time} 1315

Our amendment would also permit States to maintain or enact food
warning laws and notify parents about risks to children.
I offered a second amendment which would allow States to maintain or
enact food warning laws that require notification labeling regarding
the treatment of foods with carbon monoxide. This bill, as written,
would wipe out over 80 food safety laws and put our Nation's food
safety standards squarely in the hands of the FDA.
Michigan maintains and has laws that would be overturned with this
bill regarding sulfiting agent warnings in bulk foods, smoked fish, the
safety of food in restaurants, and laws governing the safety of milk.
That is why 37 bipartisan State attorneys general oppose this bill.
The bipartisan Association of Food and Drug Officials also have
strong concerns. They stated and wrote to us, and I quote, ``This
legislation undermines our Nation's whole biosurveillance system by
preempting and invalidating many of the State and local food safety
laws and regulations that provide the authority necessary for State and
local agents to operate food safety and security programs. The pre-9/11
concept embodied in this bill is very much out of line with the current
threats that confront our food safety and security.''
They also said that preemption and invalidation of State and local
food safety and security activities will ``severely hamper the FDA's
ability to detect and respond to acts of terrorism.'' They added, and I
quote, ``Our current food safety and security system will be
significantly disrupted and our inability to track suspected acts of
intentional alteration of food will be exploited by those who seek to
do harm to our Nation.''
The danger of placing our Nation's food safety laws squarely in the
hands of the FDA is demonstrated by my amendment on carbon monoxide.
Madam Chair, I would like to direct your attention to these pictures.
Which meat do you think is older, the red

[[Page H535]]

meat on the top or the brown meat on the bottom? It is a trick
question. They are both the same age. Both have been sitting in a
refrigerator side-by-side for 5 months.
You can see the date of the labels, October 2005. The meat on the
top, which is bright red and looks very, very healthy, has actually
been treated with carbon monoxide, which causes the meat to look red
and fresh long into the future. The meat on the bottom here, the brown,
is actually brown and slimy. Like I said, the meat on the top is 5
months old and looks as good as new, but what happens if you eat this?
You will probably become very ill and possibly die from a foodborne
pathogen like E. coli.
The FDA, in all of its wisdom, or lack thereof, has no objection to
allowing carbon monoxide meat to be packaged. Color is the most
important factor people look at when they determine which type of meat
to buy, according to numerous studies. This new practice is clearly
consumer deception, yet the FDA decided it was okay. The FDA either did
not look at the evidence or it just didn't find this whole matter
troubling. I do not know which is worse.
Right now, States may pass their own laws which label carbon monoxide
meat so the consumers are well aware of what they are getting before
they purchase it. All my amendment says is to allow the States to
require carbon monoxide labeling if you are going to try to freshen up
your meat. That is all we want to do, to allow a consumer to know what
is going on. So when they go to the store and look at the meat, if they
buy it based on a color which supposedly brings out the freshness, they
will know it was done by tricking it with carbon monoxide, but that it
is the same meat, kept for the same amount of time. All we are asking
with our amendment is to allow us to prevent this.
Do we really want this? We want to let the consumer know that the
meat has been chemically treated before they purchase it. This bill
would prevent me from doing that.
Public health and food safety have primarily been the responsibility
of the States. We should not now tie the hands of the States who want
to protect the health of their citizens in the absence of FDA judgment,
resources, expertise, or the will to do the right thing. I urge the
majority party to stand up for the American people and allow our
Democratic amendments and the Stupak carbon monoxide amendment on the
floor next week for consideration.
America can make the choice. With this bill, we will get tainted meat
with carbon monoxide and jeopardize the health and safety of the
American people.
I urge my colleagues to vote ``no'' on this bill.
Mr. WAXMAN. Madam Chairman, will the gentleman yield?
Mr. STUPAK. I yield to the gentleman from California.
Mr. WAXMAN. Madam Chairman, I think what the gentleman is
illustrating is so important, because the sponsors of this bill said we
need the Federal Government to protect the health of people all over
the country. So let us have one uniform standard.
Well, right now, the FDA could adopt that standard and stop the use
of carbon monoxide as a food additive and as a preserver of meat, but
they have not acted. So if a State wants to act, why should we tell
them they cannot act when the FDA hasn't done anything at the Federal
level? I think that is the point you are making.
Let the States, if the Federal Government fails, sometimes because
they have lobbyists up here who are more powerful, let the States at
least be able to protect their own citizens to pass the laws they think
are appropriate.
Mr. STUPAK. Reclaiming my time, the gentleman is absolutely correct.
What we are saying, basically, is let the consumer be aware of what
they are buying. Let the buyer beware.
I should know if the meat I am buying here, the hamburger, has been
treated with carbon monoxide to make it look fresh and healthy, but it
has been sitting for 5 months and really contains a deadly pathogen,
with E. coli, that can kill me.
Mr. DEAL of Georgia. Madam Chairman, I now yield 3 minutes to the
gentleman from Virginia (Mr. Goodlatte), the chairman of the
Agriculture Committee.
Mr. GOODLATTE. Madam Chairman, I thank the gentleman from Georgia for
yielding me this time and for his leadership on this issue, and I rise
in support of H.R. 4167, the National Uniformity for Food Act of 2005.
This bill takes a measured approach to national uniformity for food by
providing a mechanism for a thorough, orderly review of States'
existing regulations that may differ from those of the Federal
Government.
In the United States, the food production and distribution system is
truly national. Products made in one State are distributed not only in
all 50 States, but also the District of Columbia, the U.S. territories,
and many countries around the globe. Consumers, as well as food
manufacturers, have a right to expect that rational, scientifically
based and consistent standards will apply. Citizens of all States and
territories deserve and expect the same level of food safety
protection. Likewise, all citizens in this country will benefit from
uniform standards.
The House Committee on Agriculture oversees a significant portion of
America's food safety system. The Federal food safety functions over
which this committee has jurisdiction have long employed uniform
standards to protect public health, facilitate the marketing of
agricultural commodities, and improve efficiency of the interstate
trading of producers' goods. The adoption of uniform standards is
common practice and, indeed, the general rule when it comes to the
Federal food safety efforts.
The USDA Food Safety and Inspection Service is responsible for the
safety of domestic and imported meat in the United States. It enforces
uniform standards through the authority granted by USDA, by the Federal
Meat Inspection Act, the Poultry Products Inspection Act, the Ag
Products Inspection Act, and other authorities.
Likewise, previous amendments to the Food, Drug, and Cosmetic Act,
which were included in the Food Quality Protection Act of 1996,
provided that a State may not set tolerance levels for pesticide
residues that differ from national levels unless the State petitions
the Environmental Protection Agency for an exception based on a State-
specific situation.
Moreover, uniformity is not limited to those areas of food safety.
Congress has repeatedly recognized the importance of uniformity in food
regulation in other sectors. For example, the FDA, as authorized by the
Nutrition Labeling and Education Act, implements uniform standards for
nutrition labeling, health claims, and standards of identity.
With the world's safest food supply, every American benefits from
this system of national food safety standards. H.R. 4167 builds on this
record of success by extending this same approach to food safety
standards used by USDA and other agencies to the FDA's food safety
programs. This is an important step forward in ensuring consumer
confidence in the food they buy for their families, and I urge all
Members to support H.R. 4167.
Mr. WAXMAN. Madam Chairman, I am now proud to yield 3 minutes to the
gentlewoman from Connecticut (Ms. DeLauro), who is the chairman of the
Appropriations subcommittee that deals with the Food, Drug, and
Cosmetic Agency.
Ms. DeLAURO. Madam Chairman, I thank the gentleman for yielding me
this time.
Madam Chairman, every time this body considers a bill on how we
regulate the food of this country it is designed not to strengthen
existing law, but to weaken it, and this despite the fact that we face
many threats to our food supply: avian flu, BSE, and bioterrorism.
Today, we debate the National Uniformity for Food Act. This bill would
make our food safety laws uniform: uniformly weak, uniformly toothless.
Right now, it is States, not the Federal Government, that conduct the
body of our food safety work. State and local agencies do 80 percent of
the food inspections in the United States. They are on the front lines.
They test food products and they manage food emergencies. Yet under
this bill, State laws requiring warnings and labels on foods would be
superceded or eliminated.
The nonpartisan Congressional Budget Office estimates that 200 State
laws would be immediately affected by this

[[Page H536]]

bill's passage, requiring States to submit requests for waivers to the
FDA. The cost to the FDA for reviewing these waivers would be $100
million. Does this bill authorize another $100 million to FDA? Of
course not. This, at a time when the administration's budget proposals
cut Federal food safety funding by over $450 million.
One of my colleagues talked about this being theater. This is not
theater. Many of us have been asking for more funding for food
inspections and food safety over the last several years, and the
administration and the leadership in this House have refused to do it.
This bill has other problems. States regulate shellfish, milk
production, and other food products. In the absence of any Federal
standards, those State protections will disappear. The bill undermines
our ability to respond to bioterrorism and other food emergencies. It
would require the notification of the Secretary of HHS before
responding to a food emergency. They could only respond once they have
received assurance that the Federal Government is not taking
enforcement actions of their own. The State would then be required to
apply for waiver, after the fact, to justify their actions. This is
absurd.
If this Republican Congress wanted to make our food safety laws
uniform, it would create a single food agency that would regulate the
safety of our food, as some of us have suggested over and over again.
We have 12 different agencies and 35 statutes currently in place to
regulate food safety at the Federal level. If you want to be serious
about this issue of food safety, let us have one single agency whose
responsibility it is to make sure our food supply is safe and ensure
the public health of this Nation.
We need to do a better job of coordinating our efforts to protect the
public health, but we do not get there by weakening our laws; we get
there by strengthening them. And that is something that this bill does
not even begin to attempt to do.
Mr. DEAL of Georgia. Madam Chairman, I now yield 2 minutes to the
gentleman from Georgia (Mr. Bishop).
Mr. BISHOP of Georgia. Madam Chairman, I thank the gentleman for
yielding me this time, and I rise today in support of H.R. 4167, the
National Uniformity for Food Act. If enacted, this important
legislation would set much-needed national standards for food safety
and put an end to the confusing and often contradictory standards that
exist across many States.
This is important, given that consumers have a right to expect the
same scientifically based safety standards everywhere in the United
States. By establishing a single national system based on
comprehensive, science-based standards, consumers and businesses will
be clear about what is safe, what is permissible, and what needs to be
labeled. This is an opportunity to bolster consumer confidence.
The legislation would ensure that the FDA incorporates the best
safety and warning practices of States, and allows States to continue
to carry out sanitation inspections and enforcement. It would also
create a process by which States can petition the FDA to adopt their
own regulations as the national standard or to seek an exemption from
national uniformity. A State's requirements would remain in effect
while the FDA considers the State's petition. And where no Federal
requirement exists, States could proceed pursuant to their own
standards.
H.R. 4167 is good, commonsense legislation. It is greatly needed, and
I urge my colleagues to support it.

{time} 1330

Mr. WAXMAN. Madam Chairman, I yield myself such time as I may
consume.
I don't think consumer confidence is going to be bolstered when we
pass a law that the State Attorneys General say would strip State
governments of the ability to protect their residents through State
laws and regulations relating to the safety of food and food packaging.
Some of the more obvious State level warnings that almost certainly
would be challenged include consumer warnings about mercury
contamination of fish, arsenic in bottled water, lead in ceramic
tableware, the alcohol content in candies, the content of fats and oils
in foods, and postharvest pesticides applicable to fruits and
vegetables. The States would not be allowed to do that.
Now, the previous speaker said that we ought to have a Federal
requirement. But he was mistaken when he said that if there were no
Federal requirement States can pursue their own standards. He is wrong
because the bill before us would stop the States from pursuing their
own standards unless the Federal Government allowed them to do so. And
I think that is an intrusion on States' rights, a usurpation of power
by Washington and an ability for the industries involved to be able to
make their claim to the Federal Government to stop States from doing
exactly what they think is appropriate to protect their public and to
bolster consumer confidence.
I don't think that the confidence of the consumer should be bolstered
when we have a bill on the floor that has been around for a number of
years and no committee has ever held a hearing on it. We did not allow
the scientists to come in and tell us whether it is a good idea or not.
We didn't hear the problems from the industry that should justify this
bill. We didn't hear the opponents and the arguments that they might
make. Instead, in committee we had a mark-up where Members could debate
what we were told by different groups, but not based on a hearing
record. I think that the confidence of the American people in Congress
should be very, very low; and if this bill passes the confidence of the
American public about their food supply should be also in doubt.
Madam Chairman, I reserve the balance of my time.
Mr. DEAL of Georgia. Madam Chairman, I yield 2 minutes to the
gentleman from Minnesota (Mr. Peterson).
Mr. PETERSON of Minnesota. Madam Chairman, I rise today in strong
support of H.R. 4167, the National Uniformity for Food Act. As ranking
Democrat on the Agriculture Committee, I support this bill because it
provides uniform food safety standards and warning requirements, and it
creates a single national system for food and food products regulated
by the FDA.
Establishing uniform standards increases efficiency and safety as we
have seen in practice today with the USDA and the Federal Meat
Inspection Act, the Poultry Inspection Act, and other authorities that
were referred to by the chairman in his remarks a short time ago.
Consumers gain with this consistency and uniform regulations for
packaged food all across the 50 States under this jurisdiction of the
FDA. If a food product is safe in one State, it is safe in all States.
With the world's safest food supply at the lowest cost to its
consumers, every American benefits from this system of national food
safety standards. H.R. 4167 builds on this record of success by
extending the same approach to food safety standards used by USDA and
other agencies; and, therefore, I believe this bill should be
supported.
I strongly encourage my colleagues to vote in favor of this bill and
to oppose any amendments that weaken or attempt to gut the commonsense
approach of this legislation.
Mr. WAXMAN. Madam Chairman, I yield myself such time as I may
consume.
I just want to read a portion of a letter from Tommy Irvin who is
from the Georgia Department of Agriculture. And he said, ``The bill is
craftily written to disguise its true effects on our authority to
protect consumers. Both vague and broad in scope, this legislation
will, in reality, go far beyond the stated purpose of uniformity. The
real effect of this legislation will be the deregulation of the United
States Food Industry.''
Madam Chairman and my colleagues, we have at the Federal level, the
Department of Agriculture. The Department of Agriculture has a dual
mission: to protect consumers from unsafe agriculture products,
particularly meat and chicken. But they also have the obligation to
bolster the agriculture industries in this country. And they always
have this tension about who to respond to first.
We also have the Food and Drug Agency, and they regulate food
additives and the food supply that the USDA does not cover. Well, as
Representative Rosa DeLauro mentioned,

[[Page H537]]

we ought to have one food agency, but we have never been able to do
that because people fight over their turf.
Well, while the Federal Government is fighting over its turf, this
bill would take away the jurisdiction from the States to protect their
own people, and that is why we never hear a bill labeled as the
``usurpation of power in Washington to take away from the States the
ability to protect consumers of food.'' They do not call it that. They
call it the ``National Uniformity Bill for the Food Product,'' or
something along those lines. They always have a very nice sounding
label for legislation.
Well, do not be fooled by the label that this bill has, because it
misleads the consumer and the American public into thinking we are
doing something to protect them, when I fear it is going to make them
weaker.
Madam Chairman, I yield 2 minutes to the gentleman from Oregon (Mr.
Wu).
Mr. WU. Madam Chairman, I thank the gentleman from California for
yielding, especially under these circumstances where I am not
completely decided about this legislation. I have a sincere inquiry for
my friends on the other side of this debate, and I realize that there
are Democrats and Republicans on both sides of this debate.
Given my background in securities law, if one wants to sell
securities across this country, there is one layer of regulation at the
Securities and Exchange Commission, but you have to run the securities
through the blue sky laws of every single State in the United States.
Similarly, there is banking law at the Federal level; but if you want
to do, say, furniture lending and consumer lending, you have to do
compliance work under consumer protection laws for every State in the
Union. I used to do this kind of legal work when I was in the private
sector.
I had not intended to participate in the debate today; but, quite
frankly, I was eating. And as important as securities and insurance and
other issues are, it seems to me that Americans truly care about the
safety of what they are eating and the ability to know what it is that
they are putting down the hatch. And I am truly curious about the folks
on the other side of this debate.
What is it that distinguishes the food industry so that it does not
have to, say, like the securities industry, comply with both Federal
and State law, or with furniture lending, comply with both Federal and
State law? Because it seems to me that the food industry is pretty
healthy in this country and making good money, and we do not need to
give it, if you will, an artificial boost.
I would be happy to yield to someone from the other side.
Mr. DEAL of Georgia. I thank the gentleman for yielding. They would
have to comply with both. But what this deals with is labeling. If
there is a label that is necessary for your people in Oregon to protect
their safety, then it ought to be necessary for the people of my State
of Georgia, and it ought to be uniform in that regard, and that is what
we are saying.
Mr. WAXMAN. Madam Chairman, I yield myself such time as I may
consume.
And in response to the gentleman's point, which I think is an
excellent one, industries in this country often have to meet State
standards as well as Federal standards. I have always heard that if it
ain't broke, why fix it. And I have never heard a reason why we need
this bill. What are we fixing? What is the problem? I do not see what
the problem is, except some people would like to overturn State laws.
And if they have the case to do that, they ought to make it at the
State level, or they ought to come to the Federal Government and say
this particular law is too burdensome; we ought to have a Federal law
in its place.
But that is not what we are having proposed to us today. We are
having proposed to us a bill that just would, in a blanket way, allow
the preemption of all duly adopted laws at the State level.
Madam Chairman, I reserve the balance of my time.
Mr. DEAL of Georgia. Madam Chairman, I yield 2 minutes to the
gentlewoman from Tennessee (Mrs. Blackburn).
Mrs. BLACKBURN. Madam Chairman, the National Uniformity for Food Act
would actually foster greater cooperation among the States and the
Federal Government on an issue that I honestly believe is very
important to every American family, and that is food safety. Consumers
across the country deserve a single set of science-based food warning
requirements, not the confusing patchwork that we have today.
I am a supporter of States' rights, and our friends across the aisle
have not stood up for States' rights many times in the past, and I
really don't think they are doing so today. They are standing up for
what they love most, which is lots of government regulations.
The bill before us, the National Uniformity for Food Act, strikes an
important balance between States' rights and Federal responsibility.
The bill really enhances the model for a Federal-State regulatory
cooperation that already occurs in many areas of food safety. The bill
gives the FDA authority where it would have authority and should have
authority, which is general and scientific oversight over packaged food
safety.
It leaves to the States the fundamental tasks that are best handled
at that level, ensuring proper sanitation and making sure that the
manufacturing plants, refrigeration facilities, and food transportation
all meet or exceed minimum standards.
I encourage my colleagues to vote in favor of the bill.
Mr. WAXMAN. May I inquire of my colleague how many speakers he has
remaining?
Mr. DEAL of Georgia. I am prepared to close.
Mr. WAXMAN. Madam Chairman, I yield myself such time as I may
consume.
I will close the debate on our side.
Madam Chairman and my colleagues, let me just go through the kinds of
laws we are talking about. There are 50 State laws regulating the
safety of milk. They are not identical. And I don't know if there will
be one uniform law for the safety of milk at the Federal level, and I
am not sure that it would make sense to have it. There may be
differences that are justified. But that debate could go on, and it
could be resolved by itself. But meanwhile, we shouldn't jeopardize 50
laws on the subject when there is no Federal law to take its place.
There are 50 State laws regulating safety of food in restaurants. Why
should the restaurants in a State be regulated by Washington if their
State chooses to have a food safety disclosure or other food law?
There are 10 State laws regulating the safety of shellfish. Why
should those laws be eliminated?
There is an Alabama law regulating infested, moldy, or decayed pecans
and other nuts. That may be a problem that Alabama has. Why shouldn't
they be able to act on it, and why should we have to have that same law
elsewhere or have no law anywhere on the subject?
California law requiring consumers to be notified when food contains
contaminants that cause cancer or birth defects, a California law
limiting the amount of lead in candy, a Florida law regulating labeling
of citrus fruit and citrus products, a Maine law requiring disclosure
of the risk of eating smoked alewives, whatever that may be. A Maryland
law, prohibiting the sale of frozen food that has been previously
thawed. A Minnesota law requiring labeling of the types of wild rice. A
Mississippi law requiring the labeling of farm-raised catfish. A
Virginia law prohibiting the removal of sell-by date labels, a
Wisconsin law requiring a label showing the age and type of cheese made
in Wisconsin.
I don't know whether those are all good laws or not, but the
legislatures probably had hearings, and they got the input from people
who are supporting it, and opposing it. And they adopted it and their
Governors signed the laws.
We are now about to overturn those State laws with a bill that had no
hearing here in the Congress of the United States, and will turn it
over to the FDA, a Federal bureaucracy, to decide whether those States
may have those laws in their States still in effect. I think it is
wrong. I do not see the problem it is solving. I think that this is

[[Page H538]]

legislation that has been poorly thought out. I hope we get a chance to
offer amendments to the bill next week when we start considering it.
Especially since it has never had a day of hearings, we ought to have
an open rule. There are a limited number of issues to debate. We ought
to at least be able to debate them and have votes on those issues so
that Members can make a determined judgment as to whether this bill
ought to pass the House of Representatives.
I urge a ``no'' vote on the bill.
Madam Chairman, I yield back the balance of my time.

{time} 1345

Mr. DEAL of Georgia. Madam Chairman, I yield myself such time as I
may consume.
First of all, this has been a good debate, and I appreciate the
interest and concern.
And to my good friend, Mr. Waxman, who has handled it on the other
side, I am glad he has now become converted to being a States' righter.
Back in 1990 when he was the author of the Nutrition Labeling and
Education Act of 1990, we heard exactly the opposite arguments. I was
not here, but I am told those were the opposite arguments because as
far as nutrition labeling, it does require uniformity across the
country.
Now, if labeling on nutrition requires consistency, why should not
there be consistency in warning labels of the foods that people eat?
Mr. WAXMAN. Madam Chairman, will the gentleman yield?
Mr. DEAL of Georgia. I yield to the gentleman from California.
Mr. WAXMAN. I do recall and I can explain the situation.
Mr. DEAL of Georgia. Does it require uniformity?
Mr. WAXMAN. It does because there was no nutritional labeling at the
State level. It had been done by the industry voluntarily, and they had
different kinds of labels, and it was not in a way that we could
compare the calorie content, the carbohydrate content, the fat content.
So we decided that since this was all under Federal jurisdiction
anyway, we ought to standardize the labeling.
It was not an issue of usurping the power from the States because the
States look to the FDA to make that decision.
Mr. DEAL of Georgia. You would not advocate repealing that law and
giving it back to the States, I would assume?
Mr. WAXMAN. No, of course.
Mr. DEAL of Georgia. All right. Thank you.
Mr. WAXMAN. You would not, however, want the Federal Government to
legislate in every area that any State thinks ought to be done in their
State?
Mr. DEAL of Georgia. No.
Reclaiming my time, let me give the Members of this body examples of
some of the things that are excluded from it.
The gentleman mentioned shellfish. Shellfish are specifically
excluded from the provisions of this act. Some of the ones that I think
most of us think of as the kinds of labels that may have peculiar
application to locales that may not have application nationwide and
that are therefore not included or prohibited from being placed on
products are some of the following: open date labeling, grade labeling,
State inspection stamps, religious dietary labeling, organic or natural
designations, returnable bottle labeling, unit price labeling, and
statement of geographical origin. Those all still continue to be
allowed; they are not preempted by this legislation.
I believe we have heard from a wide variety of people who represent
points of view from their committee assignments on the Democrat side as
well as the Republican side. The gentleman quoted my Democrat
commissioner of agriculture from the State of Georgia. I called on my
Democrat Member from the State of Georgia, who has served on the
Agriculture Committee here in the House of Representatives, who said
exactly the opposite of what our State agriculture commissioner says.
Now, I think that the overall conclusion that we should reach is that
this is a good piece of legislation. It is time that we recognize that
there is a necessity for uniformity in labeling of food products, and
this legislation moves us in that direction. I would urge the adoption
of the bill when it is considered next week.
Madam Chairman. I ask that this exchange of correspondence be
included in the debate on H.R. 4167.
Congress of the United States,

Committee on the Judiciary,

Washington, DC, February 28, 2006.
Hon. Joe Barton,
Chairman, Committee on Energy and Commerce, House of
Representatives, Washington, DC.
Dear Chairman Barton: In recognition of the desire to
expedite consideration of H.R. 4167, the ``National
Uniformity for Food Act of 2005,'' the Committee on the
Judiciary hereby waives consideration of the bill. There are
several provisions contained in H.R. 4167 that implicate the
rule X jurisdiction of the Committee on the Judiciary.
Specifically, the legislation contains a number of judicial
review provisions.
The Committee takes this action with the understanding that
by foregoing consideration of H.R. 4167, the Committee on the
Judiciary does not waive any jurisdiction over subject matter
contained in this or similar legislation. The Committee also
reserves the right to seek appointment to any House-Senate
conference on this legislation and requests your support if
such a request is made. Finally, I would appreciate your
including this letter in your Committee's report for H.R.
4167 and in the Congressional Record during consideration of
H.R. 4167 on the House floor. Thank you for your attention to
these matters.
Sincerely,
F. James Sensenbrenner, Jr.,
Chairman.
____

Committee on Energy and Commerce,

Washington, DC, February 28, 2006.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary, House of
Representatives, Washington, DC.
Dear Chairman Sensenbrenner: Thank you for your letter
concerning H.R. 4167, the National Uniformity for Food Act of
2005, which the Committee on Energy and Commerce reported on
December 15, 2005.
I appreciate your willingness not to seek a referral on
H.R. 4167. I agree that your decision to forego action on the
bill will not prejudice the Committee on the Judiciary with
respect to its jurisdictional prerogatives on this or future
legislation. Further, I recognize your right to request
conferees on those provisions within the Committee on the
Judiciary's jurisdiction should they be the subject of a
House-Senate conference on this or similar legislation.
I will include our exchange of letters in the Committee's
report on H.R. 4167, and in the Congressional Record during
consideration of the bill on the House floor.
Sincerely,
Joe Barton,
Chairman.

Mr. MOORE of Kansas. Madam Chairman, I rise today in support of H.R.
4167, the National Uniformity for Food Act.
Food safety labeling standards currently vary from state to state,
which has created a patchwork of different and inconsistent
requirements. H.R. 4167 would amend the Federal Food, Drug, and
Cosmetic Act (FFDCA) to provide for national, uniform food safety
standards and warning requirements. I am cosponsor of this bipartisan
legislation because it will enhance consumer protection through
coordinating and harmonizing federal, state, and local food safety
requirements. Consumers deserve the same high level of protection
against unsafe food regardless of where they may live.
While H.R. 4167 would provide for national, uniform food safety
standards and warning requirements, the legislation, however, does not
affect state authority in several areas that are traditional local food
enforcement matters, including: freshness dating, open date labeling,
grade labeling, state inspection stamp, religious dietary labeling,
organic or natural designation, returnable bottle labeling, unit
pricing, and statement of geographic origin. Further, states would be
exempted from national food safety standards to respond during times
when substantial concerns are raised about the safety of food. I
support H.R. 4167 because it provides these important exceptions to
national standards, which will ensure authority of states in
traditional local food enforcement matters and allow states to act if
presented with an imminent food safety crisis.
Food safety labeling standards are an important public health issue,
and I support H.R. 4167 because it will provide uniform, national
standards to ensure greater consumer protection.
Mr. WILSON of South Carolina. Madam Chairman, the National Uniformity
for Food Act deserves our full support.
This act is consistent with our long tradition of cautious
Congressional oversight of interstate commerce to protect American
consumers. The act is simple. By requiring states and the FDA to
provide consumers with a single standard for food safety, this
important legislation delivers protection to American consumers.
I strongly believe the National Uniformity for Food Act is the best
way to apply the safeguards we now have over meat, poultry, drugs, and
many other products to packaged food. Under the bill, states would
retain their important functions such as sanitation, inspections and
enforcement. The act also contains

[[Page H539]]

mechanisms to review state food safety laws and consider them for
national application.
This act provides important federal protections, while retaining
valuable input from states and coordination between state and federal
food safety experts. I strongly appreciate my good friend Congressman
Mike Rogers' efforts to ensure that Americans are confident that
packaged food they find on our store shelves is safe for them and their
families. I urge all my colleagues to join me in supporting this
important act.
In conclusion, God bless our troops and we will never forget
September 11th.
Mr. PALLONE. Madam Chairman, I rise in strong opposition to H.R.
4167, the National Uniformity for Food Act of 2005. I am opposed to
this legislation for two reasons.
First, and foremost, this legislation would completely eliminate any
State or local food safety law that is not identical to requirements
established by the FDA. Even laws that go beyond the federal
requirements to protect their citizens would be pre-empted. For
example, in my home state of New Jersey, a number of labeling
requirements for milk, restaurant food safety and many other State laws
would be completely negated, thereby placing the health and well-being
of our citizens at increased risk. How is that good public policy?
I also have to oppose this legislation for the way it has completely
violated the legislative process. This bill has escaped any real
scrutiny from the Energy and Commerce Committee, which has jurisdiction
over such food safety matters. No hearings were held, no witnesses were
called to testify, and no effort was made to determine the actual
impact this bill will have on the safety of our nation's food supply.
It is clear that this bill was insufficiently reviewed and I fear that
Congress is acting far too quickly to enact legislation that will have
such sweeping affects.
I believe improving the quality of our nation's food supply is one of
the most important challenges facing Congress today. A vote for this
legislation, however, would put consumers at increased risk. I urge my
colleagues to vote ``no.''
Mr. UPTON. Madam Chairman, I rise in support of H.R. 4167, the
National Uniformity for Food Act.
This is common sense legislation that will benefit both consumers and
businesses--and particularly small businesses.
Consumers will benefit from being able to rely on scientifically-
based national food safety and warning standards, just as they now rely
on national standards for nutrition labeling.
When we think of the food manufacturing industry, we may not realize
that small manufacturers account for the bulk of the industry.
Specifically, nearly 73 percent of food manufacturers have fewer than
20 employees. These smaller firms are especially burdened by having to
comply with up to 50 different food safety and warning regimens if they
are in or wish to enter interstate commerce.
I know many of us have heard from our governors about important state
food safety and warning requirements that could be pre-empted by a
national standard. But it is important to underscore that this bill
provides for a 180-day period after enactment for states to petition
the FDA and make their cases for either permitting a state requirement
to remain in place or to make a state requirement a national standard.
Further. the state requirements will remain in place until the FDA
makes a determination on the state's petition.
Mr. DEAL of Georgia. Madam Chairman, I yield back the balance of my
time.
The ACTING CHAIRMAN (Mrs. Drake). All time for general debate has
expired.
Under the rule, the Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Deal of Georgia) having assumed the chair, Mrs. Drake, Acting Chairman
of the Committee of the Whole House on the State of the Union, reported
that that Committee, having had under consideration the bill (H.R.
4167) to amend the Federal Food, Drug, and Cosmetic Act to provide for
uniform food safety warning notification requirements, and for other
purposes, had come to no resolution thereon.

____________________